Citation NR: 9702407
Decision Date: 01/28/97 Archive Date: 02/07/97
DOCKET NO. 95-12 754 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for the cause of the
veteran’s death.
REPRESENTATION
Appellant represented by: American Red Cross
ATTORNEY FOR THE BOARD
Lorelle J. Nottle, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1940 to June
1943. He died on July[redacted] 1945. The appellant is his widow.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a February 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Louisville, Kentucky (RO) disallowing the reopening of the
appellant’s claim for service connection for the cause of the
veteran’s death on the basis that new and material evidence
had not been submitted.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the evidence submitted since the
RO’s January 1986 denial is sufficient to reopen her claim
for service connection for the cause of the veteran’s death.
Allegedly, statements from acquaintances and family members
demonstrate that the veteran was killed as a result of a
service-connected disability. Specifically, the appellant
maintains that the veteran’s mental health deteriorated
following induction into service, and that after discharge,
as a result of mental illness, he attempted to save another
individual’s life by throwing himself in front of the gun
that ended his life. Based on the foregoing, the appellant
believes a favorable determination is warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A. §
7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran’s claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the appellant has not presented new and
material evidence to reopen her claim of entitlement to
service connection for the cause of the veteran’s death.
FINDINGS OF FACT
1. In a decision dated January 1986, the RO denied the
appellant’s claim of entitlement to service connection for
the cause of the veteran’s death.
2. The appellant did not timely appeal the RO’s January 1986
denial.
3. Evidence associated with the claims file subsequent to
the RO's January 1986 decision is nonduplicative, but not
probative of the question of whether the veteran’s death was
caused, hastened or substantially and materially contributed
to by a disability of service origin.
CONCLUSIONS OF LAW
1. The RO's January 1986 decision denying the appellant’s
claim of entitlement to service connection for the cause of
the veteran’s death is final. 38 U.S.C.A.
§§ 1110, 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103
(1995).
2. The evidence received since January 1986 is not new and
material; thus, the requirements to reopen the appellant's
claim of entitlement to service connection for the cause of
the veteran’s death have not been met. 38 U.S.C.A. § 5108
(West 1991); 38 C.F.R. § 3.156 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant’s claim of entitlement to service connection
for the cause of the veteran’s death has been considered and
denied on several occasions. By an unappealed decision dated
January 1986, the RO disallowed the appellant’s claim based
on findings that the veteran’s death was not caused by his
service-connected psychoneurosis. The evidence considered at
that time included the veteran’s service medical records, a
private doctor’s statement, neighbors’ and family members’
statements, a VA hospitalization report, a social service
report, a death certificate, and a murder judgment.
The January 1986 decision was final, but may be reopened if
the appellant submits new and material evidence. The law
provides that once an RO decision becomes final under
38 U.S.C.A. § 7105(a) (West 1991), absent the submission of
new and material evidence, the claim may not thereafter be
reopened or readjudicated by the VA. See also 38 U.S.C.A.
§ 5108 (West 1991); 38 C.F.R. § 3.156(a) (1995); Suttman v.
Brown, 5 Vet.App. 127, 135 (1993). New evidence, submitted
to reopen a claim, will be presumed credible solely for the
purpose of determining whether the claim has been reopened.
Justus v. Principi, 3 Vet.App. 510, 513 (1992). All evidence
submitted since the claim was finally disallowed on any basis
must be reviewed by the Board. See Evans v. Brown, 9
Vet.App. 273, 285 (1996). If the Board’s decision is
favorable to the appellant, her claim must be reopened and
decided on the merits. See Glynn v. Brown, 6 Vet.App. 523,
528-29 (1994).
In determining whether evidence is new and material, the
Board must conduct a three-step analysis. Evans v. Brown, 9
Vet.App. at 282-284. First, it must analyze whether the
evidence is new, that is, not merely cumulative or redundant
of other evidence of record. See also Struck v. Brown, 9
Vet.App. 145, 151 (1996); Colvin v. Derwinski, 1 Vet.App.
171, 174 (1991). Second, it must analyze whether the
evidence is material, or probative to any element of an issue
that was a specified basis for the last disallowance.
Finally, once it is determined that the evidence is new and
probative, the Board must analyze whether there is a
reasonable possibility that the new evidence, when viewed in
conjunction with the old, would change the outcome of the
claim. See Evans, 9 Vet.App. at 283. See also Mintz v.
Brown, 6 Vet.App. 277, 280 (1994); Sklar v. Brown, 5 Vet.App.
140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993);
Manio v. Derwinski, 1 Vet.App. 140, 145 (1991).
The additional pertinent evidence that has been associated
with the claims file since the January 1986 RO decision
includes: (1) numerous statements of the appellant;
(2) a VA Form 21-4138 (Statement in Support of Claim) signed
by five of the veteran’s acquaintances; (3) a written
statement signed by four acquaintances; and (4) a petition
signed by twelve acquaintances. The evidence presented
subsequent to January 1986 is nonduplicative. That
notwithstanding, it is not probative to any element of an
issue that was a specified basis for the last disallowance;
thus, for the reasons stated below, it is not sufficient to
reopen the appellant’s claim.
Law and regulations provide that a claimant of dependency and
indemnity compensation benefits is entitled to service
connection for cause of death if a disability of service
origin caused, hastened or substantially and materially
contributed to the death. See 38 U.S.C.A. § 1310(b);
38 C.F.R. § 3.312. In this case, the appellant claims that
the veteran developed mental problems while serving on active
duty, and that following discharge, he became a different
person. Allegedly, he felt the need to protect others; thus,
when a man threatened to shoot another individual, the
veteran ran in front of the gun and was killed. In support
of her claim, the appellant submitted the aforementioned
statements confirming that the veteran’s mental health
deteriorated during active service.
The Board does not dispute that the veteran incurred a mental
condition while serving on active duty. Clearly, at the time
of his death, he was service connected for psychoneurosis,
neurasthenia. Rather, the sole, crucial question is whether
that service-connected disability, or any other disability of
service origin, caused his death. By law, when a case
involves a question concerning medical causation, credible
medical evidence is required. See Lathan v. Brown, 7
Vet.App. 359, 365 (1995). In this case, the veteran’s
Certificate of Death shows that he died from a “shot through
[the] center of [his] chest,” due to homicide. The claims
file is devoid of competent medical evidence, for instance, a
coroner’s report, demonstrating a link between any disability
of service origin and the veteran’s death. Generally, the
criminal intent necessary to support a murder conviction
would not be consistent with an accidental or unintended
death due to actions by the veteran, as urged by the recent
statements.
The evidence submitted since January 1986, including
statements from the appellant and acquaintances, is not
sufficiently probative, alone, to establish medical
causation. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95
(1992) (holding that laypersons are not competent to offer
medical opinions). As neither the appellant, nor the
veteran’s acquaintances are competent to address an issue
requiring expert opinion, their lay statements, while “new,”
are not probative of the issue of whether a disability of
service origin caused, hastened or substantially and
materially contributed to the veteran’s death.
As stated previously, under Evans, because the Board has
determined that the evidence submitted since January 1986 is
new but not probative, it need not analyze whether there is a
reasonable possibility that the new evidence, when viewed in
conjunction with the old, will change the disposition of the
claim. Based on the foregoing, the Board concludes that,
inasmuch as no new and material evidence has been presented
to reopen the previously disallowed claim, the January 1986
decision remains final. Accordingly, the benefit sought on
appeal must be denied.
Finally, the Board notes that in Graves v. Brown, 8 Vet.App.
522, 525 (1996), the United States Court of Veterans Appeals
held that when an application to reopen a claim has been made
and the VA is on notice of evidence which may prove to be new
and material, but has not been submitted with the
application, the VA has a duty under 38 U.S.C.A. § 5103 to
inform the claimant of the evidence necessary to complete the
application. In this case, the Board is unaware of any
specific evidence not of record which might be new and
material; therefore, no duty to inform exists.
ORDER
No new and material evidence having been submitted to reopen
the claim of entitlement to service connection for the cause
of the veteran’s death, the benefit sought on appeal is
denied.
CHARLES E. HOGEBOOM
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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